State v. Fiske

Joseph
A. Foster, attorney general (Sean P. Gill, assistant attorney
general, on the brief and orally), for the State.

Thomas
Barnard, senior assistant appellate defender, of Concord, on
the brief and orally, for the defendant.

LYNN,
J.

Following
his convictions on eight counts of aggravated felonious
sexual assault (AFSA), see RSA 632-A:2 (2016), and
one count of possession of child pornography, see
RSA 649-A:3, I(a) (2016), the defendant, Jeremy M. Fiske,
appeals, arguing that the Superior Court (Delker,
J.) erred in: (1) denying his motion for in camera
review of the counseling records of the victim; (2) allowing
the State to present evidence that he admitted to having
"perversion addictions"; (3) denying his motion to
dismiss the child pornography indictment; and (4) informing
the jury that certain indictments alleged alternative means
of committing the same offense but then imposing separate
sentences on each of the alternative charges. Finding no
error, we affirm.

I

The
pertinent facts are as follows. The victim was born in 1996.
The victim's mother (the mother) married the defendant in
2005. Thereafter, the defendant, the mother, the victim, and
the victim's brother lived together in a four-bedroom
house in Raymond.

The
defendant had a son with the mother in November 2006. Shortly
thereafter, the couple's marriage began to deteriorate.
Around this time, the victim suffered from frequent chronic
migraines, sometimes as many as three or four per week. When
stricken, she would retreat to her bedroom. The defendant
often followed her, bringing her medicine or ice packs. His
visits gradually grew longer, and he began to give the victim
massages. Eventually, the massages extended to her breasts
and vagina.

Several
months after this behavior started, the defendant began
forcing the victim to participate in sexual acts, usually
three or four times per week. These forced acts, which
continued for roughly two years, included inappropriate
touching, masturbation, and fellatio. During this time, the
defendant photographed the victim wearing lingerie, bathing
suits, and other clothes -- some of which belonged to the
mother -- that he had coerced her to wear. At least once, the
defendant also photographed the victim with a dildo in her
mouth. Occasionally, the defendant coerced the victim to
watch videos depicting him engaging in sexual activity with
the mother, while he compared the mother's and the
victim's sexual performances. The assaults ended in 2010,
when the victim was fourteen. By that time, the victim was
"finally kind of able to have the courage to say no
more" and minimized the time she spent with the
defendant. However, the victim did not tell the mother of the
assaults at that time, because the defendant told her
"that no one would understand and that no one would
believe [her]."

In
2012, the mother began to suspect that the defendant was
having an affair. After confirming the affair, she accessed
the defendant's cell phone and discovered a picture of
the victim that focused on her cleavage. The victim appeared
to be between fourteen and sixteen years old at the time the
picture was taken. The mother confronted the defendant by
e-mail about the picture, asking him if he
"fantasize[d]" about the victim or "tried to
act on those fantasies." The defendant admitted that the
victim had "nice cleavage" and that he
"pick[ed] on her about [the cleavage] at time[s], "
but denied that anything had happened between them. He
admitted that it was inappropriate, but said that "its
[sic] hard to not notice when you are the one
talking about [the cleavage] too. I already admited
[sic] I have perversion addictions." The mother
asked the defendant numerous times whether he discussed the
picture with his counselor; the defendant said that he had
never done so.

In
December 2012, after she had become involved in a serious
relationship with a boyfriend, the victim disclosed to him
that she had been sexually assaulted by the defendant, but
told him not to mention it to anyone else. In October 2014,
after the defendant had moved out of the house in Raymond,
the victim told the mother about the defendant's sexual
assaults. The mother immediately reported the assaults to the
police and informed the defendant that she had done so; he
responded by asking whether the police were coming soon.

In
November, the police executed search warrants at the house in
Raymond and at a house in Hampton where the defendant was
then living. They obtained several items of women's
clothing, including four dresses, a skirt, several shirts,
two bathing suits, a bikini, and a thong bottom. The victim
later identified these items as clothing that the defendant
had made her wear.

The
police seized the defendant's laptop computer as well.
Subsequent forensic examination of it revealed that
"File Shredder, " a program designed to
"destroy the remains of a deleted file" had been
used only days before the search. Despite that, the police
found approximately 100 thumbnail images, which were remnants
of the full-size images that had been deleted. Several of the
images depicted the victim lying in her backyard, and some
focused on her buttocks.

Two
thumbnail images depicted the victim, when she was roughly
eleven or twelve years old, with her "mouth around a
dildo." Examination of the computer by the State's
expert revealed that these two images had been
"modified" on September 13, 2007. The expert
testified that this was the last date when the images
"got touched somehow" on the computer, but that he
could not determine what occurred with respect to the images
on that date. He explained that the date could reflect the
date the images were loaded onto the computer, deleted from
the computer, or changed in some way. The expert also
testified that "[m]ost people have no idea" that
for each full-size image file on a computer a separate
thumbnail file also exists. The police also recovered a video
of the defendant and the mother engaging in sexual activity.

In
April 2015, the defendant was charged with four counts of
pattern AFSA, five counts of AFSA involving discrete acts,
and one count of possession of child sexual abuse images.
Prior to trial, the State moved in limine to admit
the e-mail in which the defendant stated that he had
"perversion addictions." After a hearing, and over
the defendant's objection, the court granted the motion,
finding that the e-mail exchange was relevant to show that
the defendant acted "under circumstances that could
reasonably be construed for purposes of sexual arousal or
gratification, " and to corroborate the victim's
testimony. The defendant moved for production of the
victim's counseling records for in camera
review, arguing that the records would reveal that the victim
did not disclose the assaults to her counselor, which would
be relevant to the case. The State objected, and the court
denied the motion.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
defendant also moved to dismiss the child pornography
indictment on the ground that "simulated fellatio does
not fall under the definition of simulated sexual
intercourse" within the meaning of RSA 649-A:2, III, and
thus, does not constitute "sexually explicit conduct,
" an element of possession of child pornography under
RSA 649-A:3. See RSA 649-A:3, I(a). The trial court
denied the motion, finding that ...

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